Seizure of real estate

Any property you own can be seized (house, apartment...).

Real estate may or may not be inhabited.

Its value should be close to the amount of money you owe.

When your creditor has an enforceable title (judgment or document made by a notary), he can instruct a commissioner of justice to seize your property.

Typically, foreclosure occurs if you have already received multiple payment requests and you are not paying the monthly installments a mortgage (or condominium charges, in the case of a condominium unit).

The Commissioner of Justice will means one command to pay, in person or at your home.

This order to pay is equivalent to seizure of the property.

As a result:

• You have 8 days to pay the amount you owe. This period is 30 days if you have mortgaged your real estate to secure another person's debt.
• You are now prohibited from selling or giving away the seized property. If it is leased, you are prohibited from using the rent amount.
• If someone lives in the seized property and the order to pay orders their removal, then the person must leave the seized property.

To be valid, the order to pay must include the following information:

• Counsel for the creditor
• Date and enforceable title (judgment or deed of a notary)
• Seized real estate
• Enforcement judge to whom you should address, in particular to challenge the seizure
• Statement of the amounts claimed from you (amount of your debt, fees and interest due and default interest)
• Obligation to pay these amounts within a certain period. And if you don't, you'll be summoned to the execution judge. The judge will then decide on the sale of the property.
• Obligation to inform the Commissioner of Justice of the identity and contact details of the tenant, if the seized property is leased
• Possibility to ask legal aid if you fill out the conditions of award
• Possibility of file a debt distress report with the personal debt distress commission, if you feel you are overleveraged
• Ability to continue to search for a buyer for the property or to give a mandate for this search. But this sale can now only be made with the authorization of the enforcement judge.

It is during the orientation hearing that the enforcement judge decides whether or not the seized property should be offered for sale.

The hearing shall take place in the court of law on which the property seized depends.

The hearing takes place in your presence (and possibly that of your lawyer) and in the presence of the creditor and his lawyer.

At this hearing, your lawyer can challenge the seizure.

Depending on the reason for the challenge, you can get

• the seizure procedure is finally stopped (e.g. the property seized does not belong to you),
• temporary discontinuance (for example, the order to pay is not valid because the Commissioner of Justice did not respect the deadlines of the procedure).

But at that hearing, you or your lawyer can ask the judge to make a decision to sell the property, as opposed to a forced sale.

Indeed, an amicable sale may allow the seized property to be sold at a better price than a forced sale.

At the end of the hearing, the judge makes his decision.

It may decide:

• Either to authorize the amicable sale of the seized property
• Order the forced sale of the seized property
• Either to terminate, definitively or temporarily, the seizure procedure

Authorization of sale

An amicable sale is only possible if the judge authorizes it.

You can ask the judge for an amicable sale 

• without waiting for the orientation hearing, but on condition that the creditor is notified
• or at the orientation hearing.

Organization of the amicable sale

The judge sets the minimum price at which the property can be sold.

He sets the date the recall hearing.

This recall hearing must be held no later than 4 months later.

Pending this hearing,

• you have to do the steps to sell your property
• and the creditor has the right to request the cessation of the mutual agreement procedure and to initiate the procedure for the forced sale of the property.

At the recall hearing, if you prove a sales compromise, the judge gives you an additional 3 months to sign the authentic bill of sale.

After this period of 3 months:

• If the judge finds that the conditions laid down for the amicable sale are fulfilled, the sale of the property is final.
• In the absence of a buyer or if the conditions set for the sale by the judge are not fulfilled, the judge orders the forced sale of the property.

After the amicable sale

The amount paid by the buyer is repaid to your creditor.

Where the amount of that sum is superior in total, the balance is returned to you.

Where the amount of that sum is inferior in total, you have to pay the remaining amount of the debt.

Organization of forced sale

The decision on the forced sale is made by the judge.

The judge fixes the date of the auction hearing of the property, within a period which must be between 2 and 4 months.

The judge determines the rules for visiting the property, at the request of the creditor.

Pending this hearing:

• The advertisement of the forced sale must be distributed (publication in legal advertisement newspapers, display of a notice in front of the property seized...). It is about informing as many potential buyers as possible. This is done by the creditor, at your expense.
• The creditor fixes the amount at which the property will be priced. If no auction takes place during the forced sale, the creditor will be declared successful tenderer good for that amount. If you consider that the price is insufficient, you can bring the case before the judge.

Auction

The adjudication hearing takes place in the courthouse, before the enforcement judge.

Each potential buyer bids through their lawyer.

The last bid determines the buyer of the property.

Within 10 days of the auction, any person may bid, by legal act, at the Registry of the Enforcement Judge.

This outbid must be at least 10% the main price of the sale.

It is equivalent to a request for the setting of a bid-rigging hearing.

After the auction

The amount raised at the end of the last auction is then paid to the creditor.

After reimbursement, the court shall terminate the attachment proceedings.

The purchaser of the goods may cause the person occupying them to be expelled from the seized goods unless the terms of the sale provide for their continued presence on the premises.